[위증·위증교사·사기][공1998.5.15.(58),1418]
Where a witness who has taken an oath makes a false statement contrary to memory on the same date, the number of crimes of perjury (=general crime) and res judicata
In a case where a witness who has taken an oath once made a false statement contrary to memory as to various facts on the same day, this constitutes one perjury by continuing to make a false statement by one criminal intent, and it does not constitute several perjurys. Thus, in a case where a final judgment on perjury is made due to another false statement made on the same day as the day when the false statement in the relevant case was made, even though the part which was made a false statement in the previous facts charged is different from the part which was made a false statement in the relevant facts charged, the res judicata effect of the final judgment in the previous case is excessive to the relevant case, and thus, the relevant perjury part shall be acquitted.
Article 152 of the Criminal Act, Article 326 of the Criminal Procedure Act
Supreme Court Decision 89Do1212 delivered on February 23, 1990 (Gong1990, 825) Supreme Court Decision 92Do498 delivered on November 27, 1992 (Gong1993Sang, 312)
Defendant 1 and two others
Prosecutor
Attorney Kim Jong-chul
Changwon District Court Decision 96No790 delivered on November 26, 1997
Of the judgment of the court below and the judgment of the court of first instance, the part on the charge of perjury against Defendant 2 as of March 18, 1992 and July 28, 1993 is reversed. Of the charges of this case against the above defendant, the above part of the charges of this case against the above defendant is dismissed in entirety, and all appeals against Defendant 1 and 3 are dismissed.
1. Examining the reasoning of the lower judgment in comparison with the records, the lower court
The judgment below is just in holding that there is no evidence of the facts charged against Defendant 1 and Defendant 3 as to the facts charged as to the perjury of September 29, 1994 and each of the perjury of Defendant 2 and the facts charged against Defendant 1 and Defendant 3, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal. Therefore, the grounds of appeal are not accepted.
2. It shall be deemed ex officio.
According to the judgment of the court below and the judgment of the court of first instance, among the facts charged in this case against Defendant 2, the court of first instance acquitted Defendant 2 on the ground that the testimony of the above defendant as the witness of the above court of this case 91 Gohap7576 on March 18, 1992 at the court of Changwon District Court No. 2 around 14:00 and the testimony of the above court of this case as witness of the above appellate court of Busan High Court No. 217 on July 28, 1993 at the court of Busan High Court No. 217 on July 28, 1993 and the testimony of the above court of this case as witness of the above appellate court of this case
However, according to the records, the above defendant was sentenced to a fine of 300,000 won for perjury at the Changwon District Court on Nov. 22, 1994 with respect to each testimony of the above date, and the above defendant appealed and was convicted of only part of the facts charged in the same court on Apr. 14, 1995, and was acquitted of the remainder. The prosecutor appealed on Aug. 11, 1995, but the Supreme Court dismissed the appeal. In a case where a witness who has taken one oath with respect to a single case made a false statement contrary to memory on the same date, which constitutes one perjury and constitutes a single perjury, and does not constitute several perjury each statement (see Supreme Court Decision 92Do498, Nov. 27, 1992). The part of the charges in this case as to which a false statement was made in the facts charged in this case should be deemed to be invalid even if it is excessively different from the part of the final judgment in this case.
Nevertheless, the judgment of the court below and the first instance court that acquitted the above facts charged committed an unlawful act that affected the conclusion of the judgment. Therefore, this part of the judgment of the court below and the first instance judgment cannot be maintained, and they are all reversed, and they are decided directly by Article 396 of the Criminal Procedure Act.
3. Therefore, the judgment of acquittal shall be rendered on the charge of perjury as of March 18, 1992 and July 28, 1993 among the charges of this case against Defendant 2, and all appeals against Defendant 1 and Defendant 3 shall be dismissed. It is so decided as per Disposition.
Justices Lee Don-hee (Presiding Justice)